Hi Friends,
I find myself in a fix and need your help.Ours is a small pvt ltd company.Our MD has a company owned car and he has a personal driver to drive the same. Over the last two years the driver has been misbehaving and habitually absenting etc. Few days back our MD relieved him of his duty due to the continuous complaints and misbehavior. He then went to the drivers union and has claimed that he was an employee of the company and that the company has illegaly terminated his services.They put up posters and turned violent also. He was never ever an employee of the company but today he is resorting to violent means and pressurising us. Police complaints etc have had no affect on their actions.For your information our company does not have any drivers on our payroll. I was wondering if you all with so much experience in HR guide me as to what steps should the company take in this situation.
jeetu
From India, Calcutta
I find myself in a fix and need your help.Ours is a small pvt ltd company.Our MD has a company owned car and he has a personal driver to drive the same. Over the last two years the driver has been misbehaving and habitually absenting etc. Few days back our MD relieved him of his duty due to the continuous complaints and misbehavior. He then went to the drivers union and has claimed that he was an employee of the company and that the company has illegaly terminated his services.They put up posters and turned violent also. He was never ever an employee of the company but today he is resorting to violent means and pressurising us. Police complaints etc have had no affect on their actions.For your information our company does not have any drivers on our payroll. I was wondering if you all with so much experience in HR guide me as to what steps should the company take in this situation.
jeetu
From India, Calcutta
Dear Jeetu,
Immediately seek legal advise from criminal laywer and labour laywer. Probably get stay order of approx 200 or 300 meters from your premises through court, submit a copy of the same to local police station and sp office,administration will auotmatically take care of it, do all these in consultation with both laywers.
Regards,
From India, Delhi
7Immediately seek legal advise from criminal laywer and labour laywer. Probably get stay order of approx 200 or 300 meters from your premises through court, submit a copy of the same to local police station and sp office,administration will auotmatically take care of it, do all these in consultation with both laywers.
Regards,
From India, Delhi
Dear
You may see the following passages in a Judgment:
The management Bank is a nationalised Bank and therefore, they have to follow the procedure prescribed for public appointment while selecting employees. Admittedly, the workmen involved in the industrial dispute did not undergo any selection process whatsoever. Both the workmen stated during evidence that they came to know about the vacancy from others and approached the respective officers. When they approached the Manager of the NRI Branch and W.P.(C).15967/2007 Regional Manager respectively offering their services as drivers, they were interviewed by the Executives, perused their licences, enquired of their experience as drivers. It was thereafter, the respective officer asked them to join duty. It is also admitted that the Bank was reimbursing the officers, the wages paid to them for their personal drivers. There was nothing on record to show that the Bank had directly paid any wages to the workmen. After appreciating this evidence, Labour Court came to the finding that the very document produced by claimants themselves show that they were engaged as personal drivers of the Officers. The evidence reveal that they were neither appointed nor terminated by the Bank. Bank had not exercised supervision or control over the workmen. They were not paid by the Bank but by the Officers directly. No leave was even applied for or granted by the Bank to these workmen at any time. It is in the light of these overwhelming materials on record, Tribunal came to the conclusion that the workmen were not employees of the Bank but personal drivers of the Officers concerned.
The counsel for the petitioner relied heavily on the decision in Bank of Baroda v. Ghemarbhai Harjibhai Rabari (2005 (2) supreme 628), the facts of which, according to the petitioner, are on all fours with the facts of this case. But I find from that decision that, in that decision the Supreme Court relied on certain vouchers for payment of wages to the drivers involved in that case to come to the conclusion that the workmen were actually employed by the Bank itself. In this case, vouchers were produced in evidence all of which show that the payment was as reimbursement to the officers who were employing the workmen as personal drivers and there was no direct payment by the Bank to the workmen.
Further you may see the definition of workman:
Sub-section 13 of section 2 defines employee as under :
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking, to any person otherwise than as the servant or agent of the owner, the owner of the undertaking".
Sub-section 13 of section 2 defines employee as under :
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied, and includes ......."
In the above cases they were Nationalised Banks .In your case you say it is a small Factory and a single Driver and Company owned car the law will be favourable to the Driver as it is perennial job and it can be argued to avoid pay-rolling him he was retained as personal driver. it is better to take him back ,bring him on the rolls and if he mis-behaves terminate him after holding an enquiry.
With Regards
Advocates & Notaries & Legal Consultants[HR]
E-mail : rajanassociates@eth,net,
-9025792684.
From India, Bangalore
You may see the following passages in a Judgment:
The management Bank is a nationalised Bank and therefore, they have to follow the procedure prescribed for public appointment while selecting employees. Admittedly, the workmen involved in the industrial dispute did not undergo any selection process whatsoever. Both the workmen stated during evidence that they came to know about the vacancy from others and approached the respective officers. When they approached the Manager of the NRI Branch and W.P.(C).15967/2007 Regional Manager respectively offering their services as drivers, they were interviewed by the Executives, perused their licences, enquired of their experience as drivers. It was thereafter, the respective officer asked them to join duty. It is also admitted that the Bank was reimbursing the officers, the wages paid to them for their personal drivers. There was nothing on record to show that the Bank had directly paid any wages to the workmen. After appreciating this evidence, Labour Court came to the finding that the very document produced by claimants themselves show that they were engaged as personal drivers of the Officers. The evidence reveal that they were neither appointed nor terminated by the Bank. Bank had not exercised supervision or control over the workmen. They were not paid by the Bank but by the Officers directly. No leave was even applied for or granted by the Bank to these workmen at any time. It is in the light of these overwhelming materials on record, Tribunal came to the conclusion that the workmen were not employees of the Bank but personal drivers of the Officers concerned.
The counsel for the petitioner relied heavily on the decision in Bank of Baroda v. Ghemarbhai Harjibhai Rabari (2005 (2) supreme 628), the facts of which, according to the petitioner, are on all fours with the facts of this case. But I find from that decision that, in that decision the Supreme Court relied on certain vouchers for payment of wages to the drivers involved in that case to come to the conclusion that the workmen were actually employed by the Bank itself. In this case, vouchers were produced in evidence all of which show that the payment was as reimbursement to the officers who were employing the workmen as personal drivers and there was no direct payment by the Bank to the workmen.
Further you may see the definition of workman:
Sub-section 13 of section 2 defines employee as under :
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking, to any person otherwise than as the servant or agent of the owner, the owner of the undertaking".
Sub-section 13 of section 2 defines employee as under :
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied, and includes ......."
In the above cases they were Nationalised Banks .In your case you say it is a small Factory and a single Driver and Company owned car the law will be favourable to the Driver as it is perennial job and it can be argued to avoid pay-rolling him he was retained as personal driver. it is better to take him back ,bring him on the rolls and if he mis-behaves terminate him after holding an enquiry.
With Regards
Advocates & Notaries & Legal Consultants[HR]
E-mail : rajanassociates@eth,net,
-9025792684.
From India, Bangalore
Dear rajanassociates
Kindly give full information on the reference of the judgement.
It is a remarkable judgement, esp. the last para,
"In the above cases they were Nationalised Banks .In your case you say it is a small Factory and a single Driver and Company owned car the law will be favourable to the Driver as it is perennial job and it can be argued to avoid pay-rolling him he was retained as personal driver. it is better to take him back ,bring him on the rolls and if he mis-behaves terminate him after holding an enquiry."
This point relating to a driver driving Company owned car, is generally never taken into consideration by managers in an organization in the same manner as an operator operating a "company-owned equipment".
From India, Delhi
Kindly give full information on the reference of the judgement.
It is a remarkable judgement, esp. the last para,
"In the above cases they were Nationalised Banks .In your case you say it is a small Factory and a single Driver and Company owned car the law will be favourable to the Driver as it is perennial job and it can be argued to avoid pay-rolling him he was retained as personal driver. it is better to take him back ,bring him on the rolls and if he mis-behaves terminate him after holding an enquiry."
This point relating to a driver driving Company owned car, is generally never taken into consideration by managers in an organization in the same manner as an operator operating a "company-owned equipment".
From India, Delhi
Hi
I share my experience in this matter.
I am running a PVt Ltd Company and had a driver for many years.
Though the car is in my name and the driver was taken in company's roll.
I have simply considered the roll of driver is very important.
Recently he has left the services due to health reasons,and got all his statutory claims.
Above all he is much happier as he was treated as one of the company's staff
I am sharing this thoughts for the benifit of our members
Regards
AVS
From India, Madras
I share my experience in this matter.
I am running a PVt Ltd Company and had a driver for many years.
Though the car is in my name and the driver was taken in company's roll.
I have simply considered the roll of driver is very important.
Recently he has left the services due to health reasons,and got all his statutory claims.
Above all he is much happier as he was treated as one of the company's staff
I am sharing this thoughts for the benifit of our members
Regards
AVS
From India, Madras
Dear Rajkumar Sab
The last para i.e
"In the above cases they were Nationalised Banks .In your case you say it is a small Factory and a single Driver and Company owned car the law will be favourable to the Driver as it is perennial job and it can be argued to avoid pay-rolling him he was retained as personal driver. it is better to take him back ,bring him on the rolls and if he mis-behaves terminate him after holding an enquiry."
was our view and not of the Court.
The details of the Judgment we shall post soon.
With Regards
Advocates & Notaries & Legal Consultants[HR]
E-mail : rajanassociates@eth,net,
-9025792684.
From India, Bangalore
The last para i.e
"In the above cases they were Nationalised Banks .In your case you say it is a small Factory and a single Driver and Company owned car the law will be favourable to the Driver as it is perennial job and it can be argued to avoid pay-rolling him he was retained as personal driver. it is better to take him back ,bring him on the rolls and if he mis-behaves terminate him after holding an enquiry."
was our view and not of the Court.
The details of the Judgment we shall post soon.
With Regards
Advocates & Notaries & Legal Consultants[HR]
E-mail : rajanassociates@eth,net,
-9025792684.
From India, Bangalore
Dear rajanassociates
Thanks for clarifications - earlier I was under the impression that it was a part of the judgement !
Nevertheless, it would still be interesting to read the full judgement.
Warm regards.
From India, Delhi
Thanks for clarifications - earlier I was under the impression that it was a part of the judgement !
Nevertheless, it would still be interesting to read the full judgement.
Warm regards.
From India, Delhi
Thank you all for the posts. This is to clarify that ours is a medical facility and our MD is a doctor himself. The driver has always been his personal driver. There is no question of any malafide intention on our part as avoiding a company status etc. He has always been taken care of and gets a salary almost double of a company drivers salary ie without the perks etc. He has an advance of around 50,000 as of today and over a period of last 10 years built his own house with inputs from our MD. Any way it is not important now as the he has been mislead by certain people into taking these steps and has gone ahead and even threatened the life of our MD and said he would disrupt the activities of the clinic also. So taking him back is totally out of the question.
From India, Calcutta
From India, Calcutta
You have an unfortunate problem.
As u have already seen, this is an hr problem not legal. You will have to see if u can go to the union and show them evidence that he was never a company employee and details of his behavious. If that does not work, then getting stay from court is the option. Perhaps going to the cops with details of death threat may help goad them to action.
In the end u may have to do a cash settlement with the union to stop the agitation.
From India, Mumbai
As u have already seen, this is an hr problem not legal. You will have to see if u can go to the union and show them evidence that he was never a company employee and details of his behavious. If that does not work, then getting stay from court is the option. Perhaps going to the cops with details of death threat may help goad them to action.
In the end u may have to do a cash settlement with the union to stop the agitation.
From India, Mumbai
Dear
As long he is working there is no issue.Now termination is an issue .The good things you have done for him cannot and will not influence the Court deciding the issue.It will only see the legality of the termination .That is where you will have to face issues.The union getting into this makes it more complicated.better then go for negotiation through an intermediary.
rajanassociates
From India, Bangalore
As long he is working there is no issue.Now termination is an issue .The good things you have done for him cannot and will not influence the Court deciding the issue.It will only see the legality of the termination .That is where you will have to face issues.The union getting into this makes it more complicated.better then go for negotiation through an intermediary.
rajanassociates
From India, Bangalore
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